0001193125-13-222698.txt : 20130515 0001193125-13-222698.hdr.sgml : 20130515 20130515171000 ACCESSION NUMBER: 0001193125-13-222698 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20130515 DATE AS OF CHANGE: 20130515 GROUP MEMBERS: CHARLES R. KAYE GROUP MEMBERS: JOSEPH P. LANDY GROUP MEMBERS: WARBURG PINCUS & CO. GROUP MEMBERS: WARBURG PINCUS LLC GROUP MEMBERS: WARBURG PINCUS PARTNERS LLC GROUP MEMBERS: WARBURG PINCUS PRIVATE EQUITY X, L.P. GROUP MEMBERS: WARBURG PINCUS X LLC GROUP MEMBERS: WARBURG PINCUS X PARTNERS, L.P. GROUP MEMBERS: WARBURG PINCUS X, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: China Biologic Products, Inc. CENTRAL INDEX KEY: 0001369868 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 752308816 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-83122 FILM NUMBER: 13848380 BUSINESS ADDRESS: STREET 1: NO.14 EAST HUSHAN ROAD CITY: TAI'AN CITY, SHANDONG STATE: F4 ZIP: 271000 BUSINESS PHONE: 86-538-620-3897 MAIL ADDRESS: STREET 1: NO.14 EAST HUSHAN ROAD CITY: TAI'AN CITY, SHANDONG STATE: F4 ZIP: 271000 FORMER COMPANY: FORMER CONFORMED NAME: GRC Holdings, Inc. DATE OF NAME CHANGE: 20060721 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: WP X Biologics LLC CENTRAL INDEX KEY: 0001575882 IRS NUMBER: 422649620 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O WARBURG PINCUS LLC STREET 2: 450 LEXINGTON AVENUE CITY: NEW YORK STATE: X1 ZIP: 10017 BUSINESS PHONE: 212-878-0600 MAIL ADDRESS: STREET 1: C/O WARBURG PINCUS LLC STREET 2: 450 LEXINGTON AVENUE CITY: NEW YORK STATE: X1 ZIP: 10017 SC 13D/A 1 d539653dsc13da.htm SCHEDULE 13D AMENDMENT NO. 10 Schedule 13D Amendment No. 10

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 10)*

 

 

China Biologic Products, Inc.

(Name of Issuer)

Common Stock, $0.0001 par value per share

(Title of Class of Securities)

16938C106

(CUSIP Number)

Scott A. Arenare, Esq.

Managing Director and General Counsel

Warburg Pincus LLC

450 Lexington Avenue

New York, NY 10017

(212) 878-0600

With a copy to:

Weiheng Chen, Esq.

Wilson Sonsini Goodrich & Rosati, P.C.

Unit 1001, 10/F Henley Building

5 Queen’s Road Central

Hong Kong

+(852) 3972 4955

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

May 14, 2013

(Date of Event Which Requires Filing of This Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ¨

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7(b) for other parties to whom copies are to be sent.

 

 

 

* The remainder of this cover page shall be filled out for a Reporting Person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


CUSIP No. 16938C106   2

 

  1.   

Names of reporting persons.

 

WP X Biologics LLC

  2.  

Check the appropriate box if a member of a group (see instructions).

(a)  x        (b)  ¨

 

  3.  

SEC use only

 

  4.  

Source of funds (see instructions)

 

    WC

  5.  

Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨

 

  6.  

Citizenship or place of organization

 

    Delaware

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7.    

Sole voting power

 

    0

     8.   

Shared voting power

 

    3,112,920 (See Item 5)

     9.   

Sole dispositive power

 

    0

   10.   

Shared dispositive power

 

    3,112,920 (See Item 5)

11.  

Aggregate amount beneficially owned by each reporting person

 

    3,112,920 (See Item 5)

12.  

Check if the aggregate amount in Row (11) excludes certain shares (see instructions)    ¨

 

13.  

Percent of class represented by amount in Row (11)

 

    11.6% (See Item 5)

14.  

Type of reporting person (see instructions)

 

    OO

 


CUSIP No. 16938C106   3

 

  1.   

Names of reporting persons.

 

Warburg Pincus Private Equity X, L.P.

  2.  

Check the appropriate box if a member of a group (see instructions).

(a)  x        (b)  ¨

 

  3.  

SEC use only

 

  4.  

Source of funds (see instructions)

 

    WC

  5.  

Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨

 

  6.  

Citizenship or place of organization

 

    Delaware

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7.    

Sole voting power

 

    0

     8.   

Shared voting power

 

    10,648,534 (See Item 5)

     9.   

Sole dispositive power

 

    0

   10.   

Shared dispositive power

 

    10,648,534 (See Item 5)

11.  

Aggregate amount beneficially owned by each reporting person

 

    10,648,534 (See Item 5)

12.  

Check if the aggregate amount in Row (11) excludes certain shares (see instructions)    ¨

 

13.  

Percent of class represented by amount in Row (11)

 

    39.7% (See Item 5)

14.  

Type of reporting person (see instructions)

 

    PN

 


CUSIP No. 16938C106   4

 

  1.   

Names of reporting persons.

 

Warburg Pincus X Partners, L.P.

  2.  

Check the appropriate box if a member of a group (see instructions).

(a)  x        (b)  ¨

 

  3.  

SEC use only

 

  4.  

Source of funds (see instructions)

 

    WC

  5.  

Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨

 

  6.  

Citizenship or place of organization

 

    Delaware

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7.    

Sole voting power

 

    0

     8.   

Shared voting power

 

    340,666 (See Item 5)

     9.   

Sole dispositive power

 

    0

   10.   

Shared dispositive power

 

    340,666 (See Item 5)

11.  

Aggregate amount beneficially owned by each reporting person

 

    340,666 (See Item 5)

12.  

Check if the aggregate amount in Row (11) excludes certain shares (see instructions)    ¨

 

13.  

Percent of class represented by amount in Row (11)

 

    1.3% (See Item 5)

14.  

Type of reporting person (see instructions)

 

    PN

 


CUSIP No. 16938C106   5

 

  1.   

Names of reporting persons.

 

Warburg Pincus X, L.P.

  2.  

Check the appropriate box if a member of a group (see instructions).

(a)  x        (b)  ¨

 

  3.  

SEC use only

 

  4.  

Source of funds (see instructions)

 

    N/A

  5.  

Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨

 

  6.  

Citizenship or place of organization

 

    Delaware

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7.    

Sole voting power

 

    0

     8.   

Shared voting power

 

    10,989,200 (See Item 5)

     9.   

Sole dispositive power

 

    0

   10.   

Shared dispositive power

 

    10,989,200 (See Item 5)

11.  

Aggregate amount beneficially owned by each reporting person

 

    10,989,200 (See Item 5)

12.  

Check if the aggregate amount in Row (11) excludes certain shares (see instructions)    ¨

 

13.  

Percent of class represented by amount in Row (11)

 

    40.9% (See Item 5)

14.  

Type of reporting person (see instructions)

 

    PN

 


CUSIP No. 16938C106   6

 

  1.   

Names of reporting persons.

 

Warburg Pincus X LLC

  2.  

Check the appropriate box if a member of a group (see instructions).

(a)  x        (b)  ¨

 

  3.  

SEC use only

 

  4.  

Source of funds (see instructions)

 

    N/A

  5.  

Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨

 

  6.  

Citizenship or place of organization

 

    Delaware

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7.    

Sole voting power

 

    0

     8.   

Shared voting power

 

    10,989,200 (See Item 5)

     9.   

Sole dispositive power

 

    0

   10.   

Shared dispositive power

 

    10,989,200 (See Item 5)

11.  

Aggregate amount beneficially owned by each reporting person

 

    10,989,200 (See Item 5)

12.  

Check if the aggregate amount in Row (11) excludes certain shares (see instructions)    ¨

 

13.  

Percent of class represented by amount in Row (11)

 

    40.9% (See Item 5)

14.  

Type of reporting person (see instructions)

 

    OO

 


CUSIP No. 16938C106   7

 

  1.   

Names of reporting persons.

 

Warburg Pincus Partners LLC

  2.  

Check the appropriate box if a member of a group (see instructions).

(a)  x        (b)  ¨

 

  3.  

SEC use only

 

  4.  

Source of funds (see instructions)

 

    N/A

  5.  

Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨

 

  6.  

Citizenship or place of organization

 

    New York

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7.    

Sole voting power

 

    0

     8.   

Shared voting power

 

    10,989,200 (See Item 5)

     9.   

Sole dispositive power

 

    0

   10.   

Shared dispositive power

 

    10,989,200 (See Item 5)

11.  

Aggregate amount beneficially owned by each reporting person

 

    10,989,200 (See Item 5)

12.  

Check if the aggregate amount in Row (11) excludes certain shares (see instructions)    ¨

 

13.  

Percent of class represented by amount in Row (11)

 

    40.9% (See Item 5)

14.  

Type of reporting person (see instructions)

 

    OO

 


CUSIP No. 16938C106   8

 

  1.   

Names of reporting persons.

 

Warburg Pincus & Co.

  2.  

Check the appropriate box if a member of a group (see instructions).

(a)  x        (b)  ¨

 

  3.  

SEC use only

 

  4.  

Source of funds (see instructions)

 

    N/A

  5.  

Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨

 

  6.  

Citizenship or place of organization

 

    New York

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7.    

Sole voting power

 

    0

     8.   

Shared voting power

 

    10,989,200 (See Item 5)

     9.   

Sole dispositive power

 

    0

   10.   

Shared dispositive power

 

    10,989,200 (See Item 5)

11.  

Aggregate amount beneficially owned by each reporting person

 

    10,989,200 (See Item 5)

12.  

Check if the aggregate amount in Row (11) excludes certain shares (see instructions)    ¨

 

13.  

Percent of class represented by amount in Row (11)

 

    40.9% (See Item 5)

14.  

Type of reporting person (see instructions)

 

    PN

 


CUSIP No. 16938C106   9

 

  1.   

Names of reporting persons.

 

Warburg Pincus LLC

  2.  

Check the appropriate box if a member of a group (see instructions).

(a)  x        (b)  ¨

 

  3.  

SEC use only

 

  4.  

Source of funds (see instructions)

 

    N/A

  5.  

Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨

 

  6.  

Citizenship or place of organization

 

    New York

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7.    

Sole voting power

 

    0

     8.   

Shared voting power

 

    10,989,200 (See Item 5)

     9.   

Sole dispositive power

 

    0

   10.   

Shared dispositive power

 

    10,989,200 (See Item 5)

11.  

Aggregate amount beneficially owned by each reporting person

 

    10,989,200 (See Item 5)

12.  

Check if the aggregate amount in Row (11) excludes certain shares (see instructions)    ¨

 

13.  

Percent of class represented by amount in Row (11)

 

    40.9% (See Item 5)

14.  

Type of reporting person (see instructions)

 

    OO

 


CUSIP No. 16938C106   10

 

  1.   

Names of reporting persons.

 

Charles R. Kaye

  2.  

Check the appropriate box if a member of a group (see instructions).

(a)  x        (b)  ¨

 

  3.  

SEC use only

 

  4.  

Source of funds (see instructions)

 

    N/A

  5.  

Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨

 

  6.  

Citizenship or place of organization

 

    United States of America

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7.    

Sole voting power

 

    0

     8.   

Shared voting power

 

    10,989,200 (See Item 5)

     9.   

Sole dispositive power

 

    0

   10.   

Shared dispositive power

 

    10,989,200 (See Item 5)

11.  

Aggregate amount beneficially owned by each reporting person

 

    10,989,200 (See Item 5)

12.  

Check if the aggregate amount in Row (11) excludes certain shares (see instructions)    ¨

 

13.  

Percent of class represented by amount in Row (11)

 

    40.9% (See Item 5)

14.  

Type of reporting person (see instructions)

 

    IN

 


CUSIP No. 16938C106   11

 

  1.   

Names of reporting persons.

 

Joseph P. Landy

  2.  

Check the appropriate box if a member of a group (see instructions).

(a)  x        (b)  ¨

 

  3.  

SEC use only

 

  4.  

Source of funds (see instructions)

 

    N/A

  5.  

Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨

 

  6.  

Citizenship or place of organization

 

    United States of America

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7.    

Sole voting power

 

    0

     8.   

Shared voting power

 

    10,989,200 (See Item 5)

     9.   

Sole dispositive power

 

    0

   10.   

Shared dispositive power

 

    10,989,200 (See Item 5)

11.  

Aggregate amount beneficially owned by each reporting person

 

    10,989,200 (See Item 5)

12.  

Check if the aggregate amount in Row (11) excludes certain shares (see instructions)    ¨

 

13.  

Percent of class represented by amount in Row (11)

 

    40.9% (See Item 5)

14.  

Type of reporting person (see instructions)

 

    IN

 


Pursuant to Rule 13d-2 promulgated under the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), this Schedule 13D/A (this “Amendment No. 10”) amends and supplements the Schedule 13D filed on November 24, 2010 (the “Original Schedule 13D”, as amended and supplemented by the Schedule 13D/A filed on December 13, 2010, the Schedule 13D/A filed on December 17, 2010, the Schedule 13D/A filed on March 3, 2011, the Schedule 13D/A filed on May 26, 2011, the Schedule 13D/A filed on May 31, 2011, the Schedule 13D/A filed on December 13, 2011, the Schedule 13D/A filed on December 19, 2011, the Schedule 13D/A filed on June 5, 2012 and the Schedule 13D/A filed on May 1, 2013, together with this Amendment No. 10, the “Schedule 13D”), and is being filed on behalf of WP X Biologics LLC, a Delaware limited liability company (“WP X B”), Warburg Pincus Private Equity X, L.P., a Delaware limited partnership (“WP X”) and holder of 96.9% of the equity interest in WP X B, Warburg Pincus X Partners, L.P., a Delaware limited partnership and holder of 3.1% of the equity interest in WP X B (“WPP X”, and together with WP X, the “Funds”), Warburg Pincus X, L.P., a Delaware limited partnership (“WP X LP”) and the sole general partner of each of the Funds, Warburg Pincus X LLC, a Delaware limited liability company (“WP X LLC”) and the sole general partner of WP X LP, Warburg Pincus Partners LLC, a New York limited liability company (“WPP LLC”) and the sole member of WP X LLC, Warburg Pincus & Co., a New York general partnership (“WP”) and the managing member of WPP LLC, Warburg Pincus LLC, a New York limited liability company (“WP LLC”) that manages each of the Funds, and Messrs. Charles R. Kaye and Joseph P. Landy, each a Managing General Partner of WP and a Co-President and Managing Member of WP LLC who may be deemed to control the Funds and WP X B, WP X LP, WP X LLC, WPP LLC, WP and WP LLC (Mr. Kaye, Mr. Landy, WP X B, WP X, WPP X, WP X LP, WP X LLC, WPP LLC, WP and WP LLC collectively being referred to as the “Warburg Pincus Reporting Persons”). This Amendment No. 10 relates to the common stock, $0.0001 par value per share (the “Shares”), of China Biologic Products, Inc., a Delaware corporation (the “Company”). The agreement among the Warburg Pincus Reporting Persons to file this Schedule 13D/A jointly in accordance with Rule 13d-1(k) of the U.S. Securities Exchange Act of 1934, as amended, (the “Joint Filing Agreement”) is attached hereto as Exhibit 9.

This Amendment No. 10 is being filed to report the closing of the purchase and sale of 3,112,920 Shares, as contemplated by a share purchase agreement (the “2013 Share Purchase Agreement”) dated April 29, 2013, entered by and among Ms. Lin Ling Li (“Ms. Li”), Mr. Ze Qin Lin and WP X B.

Certain information contained in this Schedule 13D/A relates to share ownership of persons other than the Warburg Pincus Reporting Persons. The Warburg Pincus Reporting Persons expressly disclaim any liability for any such information and for any other information provided in this Amendment that does not expressly pertain to a Warburg Pincus Reporting Person.

All capitalized terms used herein which are not defined herein have the meanings given to such terms in the Original Schedule 13D, as amended.

 

Item 3. Source and Amount of Funds or Other Consideration

Item 3 of the Schedule 13D is hereby amended by adding the following paragraphs at the end thereof:

On May 14, 2013, WP X B purchased from Ms. Li 3,112,920 Shares for an aggregate purchase price of $62,258,400.00, or $20.00 per Share, pursuant to the 2013 Share Purchase Agreement. WP X B obtained the funds used to acquire the 2013 Li Shares from working capital.

 

Item 4. Purpose of Transaction

Item 4 of the Schedule 13D is hereby supplemented by inserting the following after the last paragraph thereof:

Closing of purchase and sale of 2013 Li Shares

On May 14, 2013 (the “2013 Closing Date”), pursuant to the 2013 Share Purchase Agreement, WP X B purchased 3,112,920 Shares from Ms. Li for an aggregate purchase price of $62,258,400.00, or $20.00 per Share.

 

12


The Escrow Agreement, the Escrow Side Agreement and the 2013 Registration Rights Agreement

In connection with the closing of the purchase of the 2013 Li Shares pursuant to the 2013 Share Purchase Agreement (the “2013 Closing”) and pursuant to the 2013 Share Purchase Agreement, WP X B entered into (i) an escrow agreement dated May 14, 2013 (the “Escrow Agreement”) with Ms. Li and JPMorgan Chase Bank, N.A. (the “Escrow Agent”) and (ii) an agreement dated May 14, 2013 (the “Escrow Side Agreement”) with Ms. Li and Mr. Ze Qin Lin which provides for certain arrangements with respect to the Escrow Agreement. Under the Escrow Agreement and the Escrow Side Agreement, the share certificate representing the remaining 1,479,704 Shares held by Ms. Li after the 2013 Closing (the “Li’s Remaining Shares”) shall be deposited in an escrow account at the Escrow Agent until the resolution of that certain Hong Kong lawsuit against Ms. Li, Mr. Lin and certain other persons with respect to such Li’s Remaining Shares.

In connection with the 2013 Closing, WP X B and the Company entered into a registration rights agreement, dated May 14, 2013 (the “2013 Registration Rights Agreement”) with respect to the 2013 Li Shares.

 

Item 5. Interest in the Securities of the Issuer

Item 5 of the Schedule 13D is hereby amended and restated in its entirety as follows:

(a) The percentages used herein are calculated based upon the 26,845,101 Shares outstanding as of April 30, 2013, as reported in the Company’s proxy statement on Schedule 14A filed with the U.S. Securities and Exchange Commission (“SEC”) on April 30, 2013.

WP X B is the direct owner of 3,112,920 Shares representing approximately 11.6% of the outstanding Shares of the Company. As WP X B is owned 96.9% by WP X and 3.1% by WPP X, therefore, WP X is deemed to beneficially own 10,648,534 Shares representing 39.7% of the outstanding Shares, including 7,632,115 Shares that it directly holds, and WPP X is deemed to beneficially own 340,666 Shares representing 1.3% of the outstanding Shares, including 244,165 Shares that it directly holds.

In addition, each of the Funds may be deemed to be the beneficial owner of an additional 6,995,661 Shares, pursuant to certain voting arrangements contained in the May 2010 Stock Purchase Agreement disclosed in the Original Schedule 13D and attached as Exhibit 3 thereto. As described in Item 4 and Item 6 of the Original Schedule 13D, pursuant to Section 4(b)(i) of the May 2010 Stock Purchase Agreement, Ms. Siu Ling Chan and Ms. Li agreed with WP X and WPP X to use best efforts to cause an individual nominated by the Funds to become elected or appointed as a director of the Company provided that such individual is not prohibited by any applicable law or stock exchange rules to be a public company director, for so long as such May 2010 Selling Shareholder continues to beneficially own five percent (5%) or more of the total outstanding voting stock of the Company. In furtherance of the foregoing, upon request of the Funds, Ms. Siu Ling Chan and Ms. Li shall, to the extent allowed under Delaware law, promptly (i) use best efforts to cause the board of directors of the Company to increase its size by one and appoint the Funds’ nominee to fill such vacancy, (ii) use best efforts to nominate and elect such nominee as a director at each of the Company’s annual meetings of stockholders, (iii) vote all Shares and other securities of the Company beneficially owned at any meeting of stockholders of the Company and/or execute written consents in lieu of such meetings to elect the nominee of the Funds as a director of the Company and/or (iv) take any and all necessary or desirable actions to ensure that the nominee of the Funds is appointed as a director promptly upon the Funds’ request. As of December 14, 2010, Ms. Siu Ling Chan was the direct owner of 5,515,957 Shares, as reported in her Schedules 13D/A filed with the SEC on such date. Upon closing of the purchase and sale of the 2013 Li Shares, Ms. Li was the direct owner of 1,479,704 Shares, as reported in her Schedules 13D/A filed with the SEC on May 1, 2013. A representative of the Warburg Pincus Reporting Persons became a director of the Company on February 27, 2011, as set forth in Amendment No. 3 to the Schedule 13D previously filed with the SEC on March 3, 2011. WP X may be deemed to beneficially own, in the aggregate, 17,644,195 Shares, representing approximately 65.7% of the outstanding Shares, and WPP X may be deemed to beneficially own, in the aggregate, 7,336,327 Shares, representing approximately 27.3% of the outstanding Shares. Due to their respective relationships with the Funds and each other, each of the Warburg Pincus Reporting Persons (other than the Funds and WP X B) may be deemed to beneficially own, in the aggregate, 17,984,861 Shares, representing approximately 67.0% of the outstanding Shares. Each of WP LLC, WP, WPP LLC, WP X LLC, WP X LP, Mr. Kaye and Mr. Landy disclaims beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of all the Shares to which such Warburg Pincus Reporting Person does not have a pecuniary interest.

 

13


(b) WP X B is deemed to (i) share voting power and disposition power over 3,016,419 Shares with Warburg Pincus Reporting Persons (other than WPP X) and (ii) share voting power and disposition power over 96,501 Shares with Warburg Pincus Reporting Persons (other than WP X). WP X is deemed to (i) share voting power and disposition power over 3,016,419 Shares with WP X B, (ii) share voting power and disposition power over 10,648,534 Shares with each of the Warburg Pincus Reporting Persons (other than WPP X and WP X B), (iii) share voting power over 5,515,957 Shares with each of the Warburg Pincus Reporting Persons (other than WPP X and WP X B) and Ms. Siu Ling Chan and (iv) share voting power over 1,479,704 Shares with each of the Warburg Pincus Reporting Persons (other than WPP X and WP X B) and Ms. Li. WPP X is deemed to (i) share voting power and disposition power over 96,501 Shares with WP X B, (ii) share voting and disposition power over 340,666 Shares with each of the Warburg Pincus Reporting Persons (other than WP X and WP X B), (iii) share voting power over 5,515,957 Shares with each of the Warburg Pincus Reporting Persons (other than WP X and WP X B) and Ms. Siu Ling Chan and (iv) share voting power over 1,479,704 Shares with each of the Warburg Pincus Reporting Persons (other than WP X and WP X B) and Ms. Li. Each of the Warburg Pincus Reporting Persons (other than the Funds and WP X B) is deemed to (i) share voting power and disposition power over 3,112,920 Shares with WP X B, (ii) share voting power and disposition power over 10,989,200 Shares with the Funds, (iii) share voting power over 5,515,957 Shares with the Funds and Ms. Siu Ling Chang, and (iv) share voting power over 1,479,704 Shares with the Funds and Ms. Li.

The identity and background information of each of Ms. Siu Ling Chan and Ms. Li are available in Item 2 of each of their respective Schedules 13D, as amended, previously filed with the SEC on September 12, 2007.

(c) None.

(d) Except as set forth in this Item 5, no person other than each respective record owner referred to herein of the Shares is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, such securities.

(e) Not applicable.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Item 6 of the Schedule 13D is hereby amended and supplemented by inserting the following after the fourth paragraph thereof:

On May 14, 2013, WP X B entered into the 2013 Registration Rights Agreement with the Company for the registration of the 2013 Li Shares purchased by WP X B. The description of the 2013 Registration Rights Agreement in this Amendment No. 10 is qualified in its entirety by reference to the 2013 Registration Rights Agreement, a copy of which is attached hereto as Exhibit 10.

On May 14, 2013, WP X B, Ms. Li and JPMorgan Chase Bank, N.A. entered into the Escrow Agreement for the escrow arrangement of Li’s Remaining Shares. The description of the Escrow Agreement in this Amendment No. 10 is qualified in its entirety by reference to the Escrow Agreement, a copy of which is attached hereto as Exhibit 11.

 

14


On May 14, 2013, WP X B, Ms. Li and Mr. Ze Qin Lin entered into an Escrow Side Agreement to provide for certain arrangements with respect to the Escrow Agreement. The description of the Escrow Side Agreement in this Amendment No. 10 is qualified in its entirety by reference to the Escrow Side Agreement, a copy of which is attached hereto as Exhibit 12.

 

Item 7. Material to Be Filed as Exhibits

Item 7 of the Schedule 13D is hereby amended and restated in its entirety as follows:

Exhibit 1: Joint Filing Agreement, dated November 22, 2010, among the Warburg Pincus Reporting Persons, relating to the filing of a joint statement on Schedule 13D (incorporated by reference to Exhibit 1 of the Original Schedule 13D filed by the Warburg Pincus Reporting Persons on November 24, 2010).

Exhibit 2: Stock Purchase Agreement dated as of November 4, 2010 by and among Essence International Investment Limited, Warburg Pincus Private Equity X, L.P. and Warburg Pincus X Partners, L.P. (incorporated by reference to Exhibit 2 of the Original Schedule 13D filed by the Warburg Pincus Reporting Persons on November 24, 2010).

Exhibit 3: May 2010 Stock Purchase Agreement dated as of May 30, 2010 by and among Ms. Siu Ling Chan, Ms. Lin Ling Li, Warburg Pincus Private Equity X, L.P. and Warburg Pincus X Partners, L.P. (incorporated by reference to Exhibit 3 of the Original Schedule 13D filed by the Warburg Pincus Reporting Persons on November 24, 2010).

Exhibit 4: September 2010 Stock Purchase Agreement dated as of September 7, 2010 by and among Mr. Chao Ming Zhao, Golden Puma Holdings Limited, Warburg Pincus Private Equity X, L.P. and Warburg Pincus X Partners, L.P. (incorporated by reference to Exhibit 4 of the Original Schedule 13D filed by the Warburg Pincus Reporting Persons on November 24, 2010).

Exhibit 5: August 2010 Stock Purchase Agreement dated as of August 31, 2010 by and among Ms. Lin Ling Li, Warburg Pincus Private Equity X, L.P. and Warburg Pincus X Partners, L.P. (incorporated by reference to Exhibit 5 of the Original Schedule 13D filed by the Warburg Pincus Reporting Persons on November 24, 2010).

Exhibit 6: Registration Rights Agreement, dated December 10, 2010, among the Company, Warburg Pincus Private Equity X, L.P. and Warburg Pincus X Partners, L.P. (incorporated by reference to Exhibit 1 of the Schedule 13D/A filed by the Warburg Pincus Reporting Persons on December 13, 2010).

Exhibit 7: 2012 Share Purchase Agreement, dated as of June 1, 2012, by and among Warburg Pincus Private Equity X, L.P., Warburg Pincus X Partners, L.P., IDG-Accel China Growth Fund II L.P. and IDG-Accel China Investors II L.P. (incorporated by reference to Exhibit 7 of the Schedule 13D/A filed by the Warburg Pincus Reporting Persons on June 5, 2012).

Exhibit 8: 2013 Share Purchase Agreement, dated as of April 29, 2013, by and among Ms. Lin Ling Li, Mr. Ze Qin Lin, and WP X Biologics LLC (incorporated by reference to Exhibit 8 of the Schedule 13D/A filed by the Warburg Pincus Reporting Persons on May 1, 2013).

Exhibit 9: Joint Filing Agreement, dated May 15, 2013, among the Warburg Pincus Reporting Persons, relating to the filing of a joint statement on Schedule 13D.

Exhibit 10: 2013 Registration Rights Agreement, dated May 14, 2013, between the Company and WP X Biologics LLC.

 

15


Exhibit 11: Escrow Agreement, dated May 14, 2013, among Ms. Lin Ling Li, WP X Biologics LLC and JPMorgan Chase Bank, N.A.

Exhibit 12: Escrow Side Agreement, dated May 14, 2013, among Ms. Lin Ling Li, WP X Biologics LLC and Mr. Ze Qin Lin.

 

16


SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.

 

Dated: May 15, 2013   WP X Biologics LLC
 

By: Warburg Pincus Private Equity X, L.P., its managing member

By: Warburg Pincus X, L.P., its general partner

  By: Warburg Pincus X LLC, its general partner
  By: Warburg Pincus Partners LLC, its sole member
  By: Warburg Pincus & Co., its managing member
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*
  WARBURG PINCUS PRIVATE EQUITY X, L.P.
  By: Warburg Pincus X, L.P., its general partner
  By: Warburg Pincus X LLC, its general partner
  By: Warburg Pincus Partners LLC, its sole member
  By: Warburg Pincus & Co., its managing member
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*
  WARBURG PINCUS X PARTNERS, L.P.
  By: Warburg Pincus X, L.P., its general partner
  By: Warburg Pincus X LLC, its general partner
  By: Warburg Pincus Partners LLC, its sole member
  By: Warburg Pincus & Co., its managing member
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*
  WARBURG PINCUS X, L.P.
  By: Warburg Pincus X LLC, its general partner
  By: Warburg Pincus Partners LLC, its sole member
  By: Warburg Pincus & Co., its managing member
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*

 

17


  WARBURG PINCUS X LLC
  By: Warburg Pincus Partners LLC, its sole member
  By: Warburg Pincus & Co., its managing member
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*
  WARBURG PINCUS PARTNERS LLC
  By: Warburg Pincus & Co., its managing member
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*
  WARBURG PINCUS & CO.
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*
  WARBURG PINCUS LLC
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Managing Director
  CHARLES R. KAYE
  By:  

/s/ Charles R. Kaye

    Name:   Charles R. Kaye
    By:   Scott A. Arenare, Attorney-in-Fact*
  JOSEPH P. LANDY
  By:  

/s/ Joseph P. Landy

    Name:   Joseph P. Landy
    By:   Scott A. Arenare, Attorney-in-Fact*

 

* The Power of Attorney given by each of Warburg Pincus & Co., Mr. Kaye and Mr. Landy was previously filed with the U.S. Securities & Exchange Commission on January 15, 2013 as an exhibit to a statement on Schedule 13D/A filed by Warburg Pincus Private Equity X, L.P. with respect to Talon Therapeutics, Inc. and is hereby incorporated by reference.

 

18

EX-99.9 2 d539653dex999.htm EX-99.9 EX-99.9

Exhibit 99.9

JOINT FILING AGREEMENT

THIS JOINT FILING AGREEMENT is entered into as of May 15, 2013, by and among the parties hereto. The undersigned hereby agree that the Statement on the amendment to the Schedule 13D with respect to the common stock, par value $0.0001 per share (the “Common Stock”) of China Biologic Products, Inc., to which this agreement is attached as an exhibit, and any amendment thereafter signed by each of the undersigned shall be (unless otherwise determined by the undersigned) filed on behalf of each of the undersigned pursuant to and in accordance with the provisions of Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended.

 

Dated: May 15, 2013   WP X Biologics LLC
 

By: Warburg Pincus Private Equity X, L.P., its managing member

By: Warburg Pincus X, L.P., its general partner

  By: Warburg Pincus X LLC, its general partner
  By: Warburg Pincus Partners LLC, its sole member
  By: Warburg Pincus & Co., its managing member
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*
  WARBURG PINCUS PRIVATE EQUITY X, L.P.
  By: Warburg Pincus X, L.P., its general partner
  By: Warburg Pincus X LLC, its general partner
  By: Warburg Pincus Partners LLC, its sole member
  By: Warburg Pincus & Co., its managing member
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*
  WARBURG PINCUS X PARTNERS, L.P.
  By: Warburg Pincus X, L.P., its general partner
  By: Warburg Pincus X LLC, its general partner
  By: Warburg Pincus Partners LLC, its sole member
  By: Warburg Pincus & Co., its managing member
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*

 

-1-


  WARBURG PINCUS X, L.P.
  By: Warburg Pincus X LLC, its general partner
  By: Warburg Pincus Partners LLC, its sole member
  By: Warburg Pincus & Co., its managing member
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*
  WARBURG PINCUS X LLC
  By: Warburg Pincus Partners LLC, its sole member
  By: Warburg Pincus & Co., its managing member
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*
  WARBURG PINCUS PARTNERS LLC
  By: Warburg Pincus & Co., its managing member
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*
  WARBURG PINCUS & CO.
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Attorney-in-Fact*
  WARBURG PINCUS LLC
  By:  

/s/ Scott A. Arenare

    Name:   Scott A. Arenare
    Title:   Managing Director

 

-2-


  CHARLES R. KAYE
  By:  

/s/ Charles R. Kaye

    Name:   Charles R. Kaye
    By:   Scott A. Arenare, Attorney-in-Fact*
  JOSEPH P. LANDY
  By:  

/s/ Joseph P. Landy

    Name:   Joseph P. Landy
    By:   Scott A. Arenare, Attorney-in-Fact*

 

* The Power of Attorney given by each of Warburg Pincus & Co., Mr. Kaye and Mr. Landy was previously filed with the U.S. Securities & Exchange Commission on January 15, 2013 as an exhibit to a statement on Schedule 13D/A filed by Warburg Pincus Private Equity X, L.P. with respect to Talon Therapeutics, Inc. and is hereby incorporated by reference.

 

-3-

EX-99.10 3 d539653dex9910.htm EX-99.10 EX-99.10

Exhibit 99.10

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (this “Agreement”) is made and entered into as of May 14, 2013, by and between China Biologic Products, Inc., a Delaware corporation (the “Company”) and WP X Biologics LLC (the “Purchaser”).

RECITALS

This Agreement is being delivered pursuant to the Share Purchase Agreement, dated April 29, 2013, among Ms. Lin Ling Li (the “Selling Stockholder”), Mr. Ze Qin Lin and the Purchaser (the “Purchase Agreement”), pursuant to which the Purchaser agrees to purchase 3,112,920 shares (the “Shares”) of common stock (“Common Stock”) of the Company.

The Company and the Purchaser hereby agree as follows:

1. Definitions. Capitalized terms used and not otherwise defined herein that are defined in the Purchase Agreement will have the meanings given such terms in the Purchase Agreement. As used in this Agreement, the following terms have the respective meanings set forth in this Section 1:

2009 Holders” means the holder or holders, as the case may be, from time to time of the registrable securities issued in the Company’s June 2009 private placement transaction.

2010 Holders” means the holder or holders, as the case may be, from time to time of the registrable securities pursuant to the registration right agreement dated December 10, 2010.

Advice” has the meaning set forth in Section 8(b).

Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 144 (as defined below).

Agreement” has the meaning set forth in this first paragraph of this Agreement.

Business Day” means any a day, other than Saturday, Sunday or other day on which commercial banks in Beijing or Hong Kong are authorized or required by applicable law to close.

Company” has the meaning set forth in this first paragraph of this Agreement.

Commission” means the United States Securities and Exchange Commission.

Common Stock” means the common stock of the Company, $0.0001 par value per share.

Effectiveness Date” means (a) with respect to the Mandatory Shelf Registration Statement required to be filed under Section 2(a), the 60th day following the relevant Filing Date, or (b) with respect to any additional Registration Statement that may be required pursuant to Section 3(c), the 60th day following the filing of such additional Registration Statement.


Effectiveness Period” has the meaning set forth in Section 2(a).

Exchange Act” means the Securities Exchange Act of 1934, as amended.

Filing Date” has the meaning set forth in Section 2(a).

Holder” or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities.

Indemnified Party” has the meaning set forth in Section 6(c).

Indemnifying Party” has the meaning set forth in Section 6(c).

Losses” has the meaning set forth in Section 6(a).

Mandatory Shelf Registration Statement” has the meaning set forth in Section 2(a).

New York Courts” has the meaning set forth in Section 9(h).

Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

Piggyback Registration Statement” has the meaning set forth in Section 3(a).

Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened in writing.

Prospectus” means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.

Purchase Agreement” has the meaning set forth in the recitals herein.

Purchaser” has the meaning set forth in this first paragraph of this Agreement.

 

-2-


Registrable Securities” means: (i) the Shares and (ii) any securities issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event, or any exercise price adjustment with respect to any of the Shares; provided however, that once any such securities referred to in foregoing clauses (i) or (ii) have been sold pursuant to a Registration Statement or are eligible for resale without restriction under Rule 144 of the Securities Act, they shall no longer constitute Registrable Securities.

Registration Statement” means any registration statement required to be filed in accordance with this Agreement to register the Registrable Securities including the Prospectus, amendments and supplements to such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference therein.

Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

Rule 415 Comment” has the meaning set forth in Section 2(b).

Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

Securities Act” means the Securities Act of 1933, as amended.

Selling Stockholder” has the meaning set forth in the recitals herein.

Shares” has the meaning set forth in the recitals herein.

Trading Day” means (i) a day on which the Common Stock is traded on a Trading Market, or (ii) if the Common Stock is not listed on a Trading Market, a day on which the Common Stock is traded in the over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if the Common Stock is not quoted on a Trading Market or the OTC Bulletin Board, a day on which the Common Stock is quoted in the over-the-counter market as reported by The Pink Sheets, LLC (or any similar organization or agency succeeding to its functions of reporting prices); provided, that in the event that the Common Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day shall mean a Business Day.

Trading Market” means whichever of The New York Stock Exchange, the NYSE Amex, The NASDAQ Capital Market, The NASDAQ Global Market, or The NASDAQ Global Select Market, on which the Common Stock is listed or quoted for trading on the date in question.

 

-3-


Underwritten Offering” means a sale of securities of the Company to an underwriter or underwriters for reoffering to the public.

2. Shelf Registration.

(a) As soon as possible but no later than the date that is 120 days following the date hereof (or such later date as the Purchaser may specify, the “Filing Date”), the Company shall use best efforts to prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415 (such initial Registration Statement, together with any additional Registration Statements to be filed pursuant to Section 2(b) below, each a “Mandatory Shelf Registration Statement”). The Mandatory Shelf Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith), and shall contain the Plan of Distribution attached hereto as Annex A. The Company shall use its best efforts to cause the Mandatory Shelf Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its best efforts to keep the Mandatory Shelf Registration Statement continuously effective under the Securities Act until such time as all of the Registrable Securities covered by such Registration Statement have either been publicly sold by the Holders or may be sold by the Holders without restriction pursuant to Rule 144 under the Securities Act (the “Effectiveness Period”). The Mandatory Shelf Registration Statement shall provide for the resale from time to time, and pursuant to any method or combination of methods legally available (including, without limitation, an Underwritten Offering, a direct sale to purchasers, a sale through brokers or agents, or a sale over the Internet) by the Holders of any and all Registrable Securities. If the Registrable Securities shall be resold by the Holders in an Underwritten Offering, the Company may include in an such registration other securities for sale for its own account; provided that if the underwriters for the offering shall determine that marketing factors require a limitation in the number of shares to be included in such offering, then the securities to be sold by the Holders shall be included in such registration before any securities proposed to be sold for the account of the Company.

 

-4-


(b) In the event the Commission seeks to characterize the Mandatory Registration Statement as constituting an offering of securities by or on behalf of the Company or in any other manner, such that the Commission does not permit such Registration Statement to become effective and be used for resales in a manner that does not constitute such an offering, or permit the continuous resale at the market by Holder or other holders participating therein (or as otherwise may be acceptable to Holder) without being named therein as an “underwriter,” (a “Rule 415 Comment”), then the Company shall reduce the number of shares to be included by the Holders in such Registration Statement on a pro rata basis, based on the total number of Registrable Securities then held by each such Holder that is included in the Registration Statement, until such time as the Commission shall so permit such Registration Statement to become effective; provided, however, that the number of Registrable Securities to be included in the Mandatory Registration Statement shall not be reduced unless all other securities of the Company held by (i) the Selling Stockholder; (ii) the Company’s directors, officers, other employees and consultants; and (iii) other holders of the Company’s capital stock with registration rights that are inferior (with respect to such reduction) to the registration rights of the Holders set forth herein, are first entirely excluded from the registration. In addition, in the event that the Commission requires Holder to be specifically identified as an “underwriter” in order to permit such Registration Statement to become effective, and Holder does not consent to being so named as an underwriter in such Registration Statement, then, in each such case, the Company shall reduce the total number of Registrable Securities to be registered on behalf of Holder, until such time as the Commission does not require such identification or until Holder accepts such identification and the manner thereof. In the event of any reduction in Registrable Securities pursuant to this paragraph, the Company shall thereafter use its reasonable best efforts to find alternative methods to register the Registrable Securities with the Commission for resale by Holder; and (ii) in the event the Company, after conducting a pre-filing conference with the Commission, if possible, reasonably determines that it is unable to, or it is inadvisable for the Company to attempt to, register all of the Registrable Securities in a single registration statement, then the Company may elect to fulfill the registration requirements hereunder by registering the Registrable Securities in two or more Registration Statements; provided that the Company shall use its reasonable best efforts to file each subsequent Registration Statement no later than the earlier of (A) sixty (60) calendar days following the date on which the last of the Registrable Securities registered under the preceding Registration Statement were sold or (B) six (6) months following the date on which the preceding Registration Statement was declared effective.

(d) Within three Trading Days of the date on which a Mandatory Shelf Registration Statement under this Section 2 becomes effective, the Company shall cause its counsel to issue a blanket opinion to the transfer agent stating that the Registrable Securities are subject to an effective registration statement and can be reissued free of restrictive legend upon notice of a sale by any Holder and confirmation by such Holder that it has complied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn. Copies of the blanket opinion required by this Section 2(c) shall be delivered to each Holder within the time frame set forth above.

3. Piggyback Registrations.

(a) If, after the date hereof, the Company proposes to file a registration statement under the Securities Act providing for a public offering of the Company’s securities, other than a registration statement on Form S-8 or Form S-4 or any similar form hereafter adopted by the Commission as a replacement therefor (including the Prospectus, amendments and supplements to such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration statement, the “Piggyback Registration Statement”), the Company shall notify each Holder of the proposed filing and afford each Holder an opportunity to include in such Piggyback Registration Statement all or any part of the Registrable Securities then held by such Holder. Each Holder desiring to include in any such Piggyback Registration Statement all or part of the Registrable Securities held by such Holder shall, within ten days after delivery of the above-described notice by the Company, so notify the Company in writing, and in such notice shall inform the Company of the number of Registrable Securities such Holder wishes to include in such Piggyback Registration Statement and provide, as a condition to such inclusion, such information regarding itself, the Registrable Securities held by it and the intended method of disposition of such securities as is required pursuant to Regulation S-K promulgated under the Securities Act to effect the registration of the Registrable Securities. Any election by any Holder to include any Registrable Securities in such Piggyback Registration Statement shall not affect the inclusion of such Registrable Securities in any Mandatory Shelf Registration Statement until such Registrable Securities have been sold under the Piggyback Registration Statement; provided, however, that at such time, the Company shall have the right to remove from any Mandatory Shelf Registration Statement, the Registrable Securities sold pursuant to the Piggyback Registration Statement.

 

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(b) At any time, the Company may terminate or withdraw any Piggyback Registration Statement referred to in Section 3(a), and without any obligation to any such Holder whether or not any Holder has elected to include Registrable Securities in such registration. The Company shall also have the right to suspend the effectiveness and use of any Piggyback Registration Statement at any time for an unlimited amount of time whether or not any Holder has elected to include Registrable Securities in such registration.

(c) The Company shall advise the Holders of the managing underwriters for any Underwritten Offering proposed under the Piggyback Registration Statement. The right of any such Holder’s Registrable Securities to be included in any Piggyback Registration Statement pursuant to this Section 3(c) shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in the Underwritten Offering to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such Underwritten Offering shall enter into an underwriting agreement in customary form with the managing underwriters selected by the Company for such underwriting and complete and execute any questionnaires, powers of attorney, indemnities, securities escrow agreements, custody agreements, lock-up agreements, and other documents reasonably required under the terms of such underwriting, and furnish to the Company such information in writing as the Company may reasonably request for inclusion in the Registration Statement; provided, however, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements as are customary and reasonably requested by the underwriters. Notwithstanding any other provision of this Agreement, if at any time the managing underwriters determine in good faith that marketing factors require a limitation on the number of shares to be included, or the Company receives a Rule 415 Comment with respect to any such Piggyback Registration Statement, then the managing underwriters may exclude shares (including Registrable Securities) from the Piggyback Registration Statement and the Underwritten Offering, and any Shares included in the Piggyback Registration Statement and the Underwritten Offering shall be allocated, first, to the Company, and second, to each of the Holders requesting inclusion of their Registrable Securities in such Piggyback Registration Statement on a pro rata basis based on the total number of Registrable Securities then held by each such Holder that is requesting inclusion; provided, however, that the number of Registrable Securities to be included in the Piggyback Registration Statement shall not be reduced unless all other securities of the Company held by (i) the Selling Stockholder; (ii) the Company’s directors, officers, other employees and consultants; and (iii) other holders of the Company’s capital stock with registration rights that are inferior (with respect to such reduction) to the registration rights of the Holders set forth herein, are first entirely excluded from the underwriting and registration. For the avoidance of doubt, the securities included in such Registration Statement by the 2009 Holders and the 2010 Holders shall have priority over the shares held by any Holder and shall not be subject to any reduction hereunder unless all other shares held by the Holders are first reduced. If any Holder disapproves of the terms of any such Underwritten Offering that is undertaken in compliance with the terms hereof, such Holder may elect to withdraw therefrom by providing written notice to the Company and the underwriter, delivered at least ten Trading Days prior to the effective date of the Piggyback Registration Statement. Any Registrable Securities excluded or withdrawn from such Underwritten Offering shall be excluded and withdrawn from the Piggyback Registration Statement.

 

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(d) By electing to include Registrable Securities in the Piggyback Registration Statement, if any, the Holder shall be deemed to have agreed not to effect any sale or distribution of securities of the Company of the same or similar class or classes of the securities included in the Registration Statement or any securities convertible into or exchangeable or exercisable for such securities, including a sale pursuant to Rule 144 under the Securities Act, during such periods as reasonably requested by the managing underwriter (but in no event for a period longer than 60 days following the effective date of the Piggyback Registration Statement; provided that each of the officers and directors of the Company that hold shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock are subject to restrictions at least as burdensome as those applicable to the Holders for not less than the entire time period required of the Holders hereunder).

(e) The Company’s obligation to file any Mandatory Shelf Registration Statement under Section 2 shall not be affected by the filing or effectiveness of the Piggyback Registration Statement under this Section 3.

4. Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:

(a) Not less than four Trading Days prior to the filing of a Registration Statement, the Company shall furnish to each Holder copies of such document which will be subject to the review of such Holder. The Company shall not file a Registration Statement to which a Holder reasonably objects in writing (including via e-mail).

(b) (i) Prepare and file with the Commission such amendments, including post-effective amendments, to each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably possible provide, upon request, the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that would not result in the disclosure to the Holders of material and non-public information concerning the Company; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the Registration Statements and the disposition of all Registrable Securities covered by each Registration Statement.

 

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(c) Notify the Holders as promptly as reasonably possible (and, in the case of (i)(A) below, not less than three Trading Days prior to such filing and, in the case of (v) below, not less than three Trading Days prior to the financial statements in any Registration Statement becoming ineligible for inclusion therein) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to a Registration Statement is proposed to be filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to each Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (v) of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(d) Use its reasonable best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.

(e) Promptly deliver to each Holder, without charge, one electronic copy of each Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.

 

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(f) Prior to any resale of Registrable Securities by a Holder, use its reasonable best efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the registration or qualification) of such Registrable Securities for the resale by the Holder under the securities or “blue sky” laws of such jurisdictions within the United States as any Holder reasonably requests in writing (including via e-mail), to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. In connection with the Company’s obligations under this Section 4(f), the Company shall promptly following the Effectiveness Date, qualify for a “Manual’s Exemption” allowing for secondary trading in the Company’s Common Stock once the Company has a listing in Standard & Poor’s Rating Services, Moody’s Investor Service, or other similar nationally recognized securities manual.

(g) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders may request.

(h) Upon the occurrence of any event contemplated by Section 4(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the affected Registration Statements or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, no Registration Statement nor any Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

5. Registration Expenses. All fees and expenses incident to the performance of or compliance with this Agreement by the Company shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with any Trading Market on which the Common Stock is then listed for trading, and (B) in compliance with applicable state securities or “blue sky” laws), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, and (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement, but shall exclude underwriter’s discounts and commissions and stock transfer tax applicable to sale of Registrable Securities and fees and disbursements of one counsel for the Holders (not to exceed $100,000). In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder. Notwithstanding the foregoing, the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 2 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered (in which case all participating Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be included in the withdrawn registration); provided, however, that if at the time of such withdrawal, the Holders have learned of a material adverse change in the condition, business or prospects of the Company from that known to the Holders at the time of their request and have withdrawn the request with reasonable promptness following disclosure by the Company of such material adverse change, then the Holders shall not be required to pay any of such expenses and shall retain their rights pursuant to Section 2.

 

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6. Indemnification.

(a) Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the officers, directors, agents, investment advisors, partners, members and employees of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, agents and employees of each such controlling Person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable costs of preparation and reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that (1) such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in the Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto or (2) in the case of an occurrence of an event of the type specified in Section 4(c)(ii)-(v), the use by such Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by such Holder of an Advice or an amended or supplemented Prospectus, but only if and to the extent that following the receipt of the Advice or the amended or supplemented Prospectus the misstatement or omission giving rise to such Loss would have been corrected. The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of which the Company is aware in connection with the transactions contemplated by this Agreement.

 

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(b) Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising solely out of or based solely upon: (x) such Holder’s failure to comply with the prospectus delivery requirements of the Securities Act or (y) any untrue statement of a material fact contained in any Registration Statement, any Prospectus, or any form of prospectus, or in any amendment or supplement thereto, or arising solely out of or based solely upon any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading to the extent, but only to the extent that, (1) such untrue statements or omissions are based solely upon information regarding such Holder, provided by such Holder to the Company in the Selling Securityholder Notice and Questionnaire attached hereto as Annex B (as amended or supplemented), or furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in the Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto or (2) in the case of an occurrence of an event of the type specified in Section 4(c)(ii)-(v), the use by such Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by such Holder of an Advice or an amended or supplemented Prospectus, but only if and to the extent that following the receipt of the Advice or the amended or supplemented Prospectus the misstatement or omission giving rise to such Loss would have been corrected. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation.

(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially adversely prejudiced the Indemnifying Party.

An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.

 

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All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not entitled to indemnification hereunder).

(d) Contribution. If a claim for indemnification under Section 6(a) or 6(b) is unavailable to an Indemnified Party (by reason of public policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in Section 6(c), any reasonable attorneys’ or other reasonable fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms.

The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 6(d), no Holder shall be required to contribute, in the aggregate, any amount in excess of the amount by which the proceeds actually received by such Holder from the sale of the Registrable Securities subject to the Proceeding exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.

 

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The indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties.

7. Covenants of the Company

(a) No Superior Registration Rights. The Company covenants and agrees that it will not grant any registration rights to any other party that are more senior than the equivalent provisions contained in this Agreement after the date hereof.

(b) Listing in Alternative Jurisdictions. The Company covenants and agrees that, in the event that any listing of the Registrable Securities shall take place in a non-U.S. jurisdiction that regulates the registration or listing of securities, if commercially feasible the Company will offer the Purchaser registration rights substantially comparable to the terms contained herein.

8. Covenants of the Holder

(a) Compliance. In connection with inclusion of its shares in any registration hereunder, a Holder shall provide, on a timely basis, such information concerning the Holder as the Company may reasonably request, including without limitation, completing or updating the Selling Securityholder Notice and Questionnaire attached hereto as Annex B. Each Holder also covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it in connection with sales of Registrable Securities pursuant to the Registration Statement.

(b) Discontinued Disposition. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 4(c), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.

9. Miscellaneous.

(a) Fees and Expenses. Except as specified, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement.

(b) Entire Agreement. This Agreement, together with the Annexes hereto, contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents and annexes.

 

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(c) Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this Section prior to 5:00 p.m. (China time) on a Business Day, (b) the next Business Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this Section on a day that is not a Business Day or later than 5:00 p.m. (China time) on any date and earlier than 11:59 p.m. (China time) on such date, (c) the Business Day following the date of mailing, if sent by a nationally recognized overnight courier service, or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as follows:

 

If to the Company:    China Biologic Products, Inc.
  

18th Floor, Jialong International Building

19 Chaoyang Park Road

Chaoyang District, Beijing 100125

   People’s Republic of China
   Telephone: +86-10-6698-3166
   Attention: Chief Financial Officer
If to the Purchaser:    Warburg Pincus LLC
   450 Lexington Avenue
   New York, NY 10017
   Telephone: +1 (212) 878 0600
   Facsimile: +1 (212) 878 9200
   Attention: Timothy J. Curt
With a copy to:    Warburg Pincus Asia LLC
   Suite 6703, Two IFC
   8 Finance Street
   Hong Kong
   Telephone: +(852) 2536 6183
   Facsimile: +(852) 3010 3338
   Attention: Andrew Chan

or such other address as may be designated in writing hereafter, in the same manner, by such Person.

(d) Amendments; Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed by the Company and Holders holding a majority in principal amount of the Registrable Securities. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right.

 

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(e) Construction. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party. This Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

(f) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchaser; provided, however, the Company shall assign this Agreement to any other corporation that succeeds to all or substantially all of its business pursuant to any reorganization or sale or disposition of substantially all of its assets, and the Company shall not enter into any such transaction unless and until such successor assumes all rights and obligations of the Company hereunder pursuant to a written agreement for the benefit of the Holders (it being understood that if such successor is the issuer of the Common Stock and such assumption of the rights and obligations of the Company hereunder occurs by operation of law, that such successor shall not be required to execute a written agreement for the benefit of the Holders). The Purchaser may assign any or all of its rights and obligations under this Agreement to any transferee of Registrable Securities, provided such assignee agrees in writing to be bound, with respect to the transferred Registrable Securities, by the provisions hereof and thereof that apply to the “Holder” of such Registrable Securities.

(g) No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person except as provided in Section 9(f) hereof.

(h) Governing Law. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF THAT WOULD APPLY ANY OTHER LAW. Each party agrees that all Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective Affiliates, employees or agents) may be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “New York Courts”). Each party hereto hereby irrevocably submits to the non-exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of this Agreement), and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any such New York Court, or that such Proceeding has been commenced in an improper or inconvenient forum. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

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(i) Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or electronic transmission of portable document format (pdf), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile signature page or signature electronically transmitted in pdf were an original thereof.

(j) Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.

(k) Remedies. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Purchaser and the Company will be entitled to specific performance under this Agreement. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agrees to waive in any action for specific performance of any such obligation the defense that a remedy at law would be adequate.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGES TO FOLLOW]

 

-16-


IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.

 

CHINA BIOLOGIC PRODUCTS, INC.
By:  

/s/ Ming Yang

Name:   Ming Yang
Title:   Chief Financial Officer
  WP X BIOLOGICS LLC
  By:  

/s/ Timothy J. Curt

  Name:   Timothy J. Curt
  Title:   Vice President and Treasurer


ANNEX A

Plan of Distribution

The selling stockholders and any of their pledgees, donees, transferees, assignees and successors-in-interest may, from time to time, sell any or all of their shares of Common Stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These sales may be at fixed or negotiated prices. The selling stockholders may use any one or more of the following methods when selling shares:

 

   

ordinary brokerage transactions and transactions in which the broker-dealer solicits Investors;

 

   

block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;

 

   

purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

 

   

an exchange distribution in accordance with the rules of the applicable exchange;

 

   

privately negotiated transactions;

 

   

to cover short sales made after the date that this Registration Statement is declared effective by the Commission;

 

   

broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;

 

   

a combination of any such methods of sale; and

 

   

any other method permitted pursuant to applicable law.

The selling stockholders may also sell shares under Rule 144 under the Securities Act, if available, rather than under this prospectus.

Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. The selling stockholders do not expect these commissions and discounts to exceed what is customary in the types of transactions involved.

The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of Common Stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell shares of Common Stock from time to time under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933 amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus.


Upon the Company being notified in writing by a selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of Common Stock through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, a supplement to this prospectus will be filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each such selling stockholder and of the participating broker-dealer(s), (ii) the number of shares involved, (iii) the price at which such the shares of Common Stock were sold, (iv) the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, and (vi) other facts material to the transaction. In addition, upon the Company being notified in writing by a selling stockholder that a donee or pledgee intends to sell more than 500 shares of Common Stock, a supplement to this prospectus will be filed if then required in accordance with applicable securities law.

The selling stockholders also may transfer the shares of Common Stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.

The selling stockholders and any broker-dealers or agents that are involved in selling the shares may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Discounts, concessions, commissions and similar selling expenses, if any, that can be attributed to the sale of the securities will be paid by the selling stockholders and/or the purchasers. Each selling stockholder has represented and warranted to the Company that it acquired the securities subject to this registration statement in the ordinary course of the selling stockholder’s business and, at the time of its purchase of such securities such selling stockholder had no agreements or understandings, directly or indirectly, with any person to distribute any such securities.

The Company has advised each selling stockholder that it may not use shares registered on this Registration Statement to cover short sales of Common Stock made prior to the date on which this Registration Statement shall have been declared effective by the Commission. If a selling stockholder uses this prospectus for any sale of the Common Stock, it will be subject to the prospectus delivery requirements of the Securities Act. The selling stockholders will be responsible to comply with the applicable provisions of the Securities Act and Exchange Act, and the rules and regulations thereunder promulgated, including, without limitation, Regulation M, as applicable to such selling stockholders in connection with resales of their respective shares under this Registration Statement.

The Company is required to pay all fees and expenses incident to the registration of the shares, but the Company will not receive any proceeds from the sale of the Common Stock. The Company has agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.


ANNEX B

CHINA BIOLOGIC PRODUCTS, INC.

Selling Securityholder Notice and Questionnaire

The undersigned beneficial owner of common stock (the “Common Stock”), of China Biologic Products, Inc., a Delaware corporation (the “Company”), understands that the Company intends to file with the Securities and Exchange Commission (the “Commission”) a Registration Statement for the registration and resale of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement, dated as of May     , 2013 (the “Registration Rights Agreement”), among the Company and the Purchasers named therein. A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms used and not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.

The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate:

QUESTIONNAIRE

 

1.   Name.
  (a)   Full Legal Name of Selling Securityholder exactly as it should appear in the Registration Statement:
   

 

  (b)   Full Legal Name of Natural Control Person (which means a natural individual who directly or indirectly alone or with others has power to vote or dispose of the securities covered by this questionnaire):
   

 

2.   Address for Notices to Selling Securityholder:

 

 

     

 

     

 

Telephone:  

 

Fax:  

 

Contact Person:  

 


3.   Beneficial Ownership of Registrable Securities:
    Type and Principal Amount of securities to be included in the Registration Statement (the “Registrable Securities”):
   

 

   

 

   

 

 

4.   Broker-Dealer Status:
  (a)   Are you a broker-dealer?
    Yes    ¨        No    ¨
  Note:   If yes, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.
  (b)   Are you an affiliate of a broker-dealer?
    Yes    ¨        No    ¨
  (c)   If you are an affiliate of a broker-dealer, do you certify that you bought the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities?
    Yes    ¨        No    ¨
  Note:   If no, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.
5.   Beneficial Ownership of Other Securities of the Company Owned.
    Except as set forth below in this Item 5, the undersigned is not the beneficial or registered owner of any securities of the Company other than the Registrable Securities listed above in Item 3.
  Type and Amount of Other Securities beneficially owned by the Selling Securityholder:
 

 

 

 


6.   Relationships with the Company:
    Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.
    State any exceptions here:
   

 

   

 

   

 

The Company has advised each selling stockholder that it is the view of the Commission that it may not use shares registered on the Registration Statement to cover short sales of Common Stock made prior to the date on which the Registration Statement is declared effective by the Commission, in accordance with 1997 Securities and Exchange Commission Manual of Publicly Available Telephone Interpretations Section A.65. If a selling stockholder uses the prospectus for any sale of the Common Stock, it will be subject to the prospectus delivery requirements of the Securities Act. The selling stockholders will be responsible to comply with the applicable provisions of the Securities Act and Exchange Act, and the rules and regulations thereunder promulgated, including, without limitation, Regulation M, as applicable to such selling stockholders in connection with resales of their respective shares under the Registration Statement.

The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof and prior to the Effective Date for the Registration Statement.

Certain legal consequences arise from being named as a Selling Securityholder in the Registration Statement and related prospectus. Accordingly, the undersigned is advised to consult their own securities law counsel regarding the consequence of being named or not being named as a Selling Securityholder in the Registration Statement and the related prospectus.


By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through 6 and the inclusion of such information in the Registration Statement and the related prospectus. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related prospectus. The undersigned hereby elects to include the Registrable Securities owned by it and listed above in Item 3 (unless otherwise specified in Item 3) in the Registration Statement.


IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.

 

Dated:  

 

    Beneficial Owner:
      By:  

 

      Name:  
      Title:  
EX-99.11 4 d539653dex9911.htm EX-99.11 EX-99.11

Exhibit 99.11

ESCROW AGREEMENT

THIS ESCROW AGREEMENT (as the same may be amended or modified from time to time and including any and all written instructions given to the Escrow Agent (hereinafter defined) pursuant hereto, this “Agreement”) is made and entered into as at May 14, 2013, by and among WP X Biologics LLC, a Delaware limited liability company (“Party A”), Ms. Lin Ling Li, a Hong Kong resident with Hong Kong ID number of R330968(0) (“Party B”, and together with Party A, referred to individually as a “Party” and collectively as the “Parties”), and JPMorgan Chase Bank, N.A., Hong Kong Branch (the “Escrow Agent”).

WHEREAS, the Parties have entered into a share purchase agreement dated April 29, 2013 in relation to the acquisition of certain interests of China Biologic Products, Inc. (the “Underlying Agreement”) and wish to jointly appoint the Escrow Agent to provide certain services to the Parties as set out in this Agreement.

NOW THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth, the parties hereto agree as follows:

 

1. Appointment

The Parties hereby appoint the Escrow Agent as their escrow agent for the purposes set forth herein, and the Escrow Agent hereby accepts such appointment under the terms and conditions set forth herein.

 

2. Escrow Document

 

2.1 Party B agrees to deposit with the Escrow Agent at Closing (as defined in the Underlying Agreement) a sealed envelope (the “Escrow Document”) labeling a share certificate representing 1,479,704 shares of the common stock of China Biologic Products, Inc. (“CBPO”) registered under the name of Party B (the “Escrowed Shares”). After receipt of the Escrow Document, the Escrow Agent shall promptly deliver to Party B an original of written receipt confirming the receipt of the Escrow Document, and to Party A a photocopy of such written receipt.

 

2.2 In the event of any reorganization or reclassification of common stock of CBPO or consolidation or merger of CBPO with another corporation or any other similar event (each a “Stock Reorganization Event”), the parties hereto shall take all necessary actions to replace the share certificate deposited with the Escrow Agent under Section 2.1 with a new share certificate (the “Replacing Share Certificate”) representing the shares held by Party B as a result of a Stock Reorganization Event equivalent to the 1,479,704 shares previously held by Party B as referred to under Section 2.1. All references herein to the Escrow Document thereafter shall refer to the Replacing Share Certificate.

 

2.3 The Escrow Agent shall hold the Escrow Document on the terms and subject to the conditions of this Agreement.

 

2.4 The Escrow Agent shall not be required to use any special security measures beyond the usual measures it would use for the security of its own documents in the place where the Escrow Document will be held.

 

3. Disposition and Termination

 

3.1 Subject to following the procedures set forth in Section 3.2 below, upon delivery of a written notice (the “Release Notice”) jointly signed by the Parties, the Escrow Agent shall release the Escrow Document to Party B or deliver the Escrow Document to the transfer agent of the common stock of CBPO (the “Transfer Agent”) by courier, in each case in accordance with the instruction provided in the Release Notice. The Parties acknowledge and agree to hold Escrow Agent harmless by delivering the Escrow Document by courier, and the Escrow Agent is not responsible to any loss in transit or the like by way of courier delivery.


3.2 Notwithstanding any other provisions in this Agreement, the Escrow Agent shall forthwith upon receiving any joint written notice signed by both Parties in respect of any Escrowed Shares (“Instruction”), deliver to each Party a written notice (“Notice”) attaching a copy of the Instruction.

 

  (i) In the event that the Escrow Agent does not receive any objection to the Instruction from either Party within ten (10) Business Days after its delivery of the Notice, the Escrow Agent is authorized to act in accordance with the Instruction.

 

  (ii) In the event that the Escrow Agent receives any objection to the Instruction from either Party within ten (10) Business Days after its delivery of the Notice, the Escrow Agent shall refrain from taking any action and shall keep the Escrow Document in custody until (a) a final and non-appealable order or judgment of a court of competent jurisdiction has been made in respect of the Instruction, in which case the Escrow Agent shall act in accordance with such order or judgment; or (b) the Escrow Agent shall be given a joint instruction in writing by both Parties, in which case the Escrow Agent shall take actions in accordance with the provisions in the leading paragraph of this Section 3.2.

 

3.3 Upon the delivery of the Escrow Document by the Escrow Agent to Party B or any third party as jointly directed by the Parties, this Agreement and the duties and obligations of the Escrow Agent under this Agreement shall terminate.

 

3.4 Sections 6, 7, 8, 9 and this Section 3.4 shall survive the termination of this Agreement.

 

4. Escrow Agent

 

4.1 The Escrow Agent shall have only those duties as are specifically and expressly provided herein (and no implied duties), which shall be deemed purely ministerial in nature, and shall under no circumstances be deemed a trustee or fiduciary for the Parties. For the avoidance of doubt, the Escrow Agent shall have no right, power or authorization to exercise any right attached to the Escrowed Shares. In no event shall the title to any Escrowed Shares pass to the Escrow Agent. So long as and to the extent Party B remains the holder of Escrowed Shares in the register of shareholders maintained by the Transfer Agent, any and all title and rights to, and interest in, the Escrowed Shares shall remain with Party B and Party B shall be entitled to receive all dividends, distributions and any other sums which are or may become payable or paid to Party B with respect to the Escrowed Shares. The Escrow Agent shall be neither responsible for, nor chargeable with knowledge of, or have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties in connection herewith, if any, including without limitation the Underlying Agreement, nor shall the Escrow Agent be required to determine if any person or entity has complied with the Underlying Agreement, nor shall any additional obligations of the Escrow Agent be inferred from the terms of the Underlying Agreement, even though reference thereto may be made in this Agreement.

 

4.2 In the event of any conflict between the terms and provisions of this Agreement and those of the Underlying Agreement or any other agreement among the Parties, the terms and conditions of this Agreement shall control.

 

4.3 Subject to Section 11, the Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person(s) without inquiry and without requiring substantiating evidence of any kind. Subject to Section 11, the Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such notice, document, instruction or request.

Notwithstanding any other term to the contrary, the Escrow Agent shall have no duty to collect or deliver the Escrow Document other than by accepting a sealed packet from Party B and delivering the same per the terms herein, in each case at the address of the Escrow Agent as specified in this Agreement, nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy, existence, identity or correctness of the Escrow Document delivered to the Escrow Agent hereunder.

 

This document contains information that is confidential and the property of J.P. Morgan Chase & Co. or its affiliates. It may not be copied, published or used, in whole or in part, for any purpose other than as expressly authorised by J.P. Morgan Chase & Co. or its affiliates.

© J.P. Morgan Chase & Co. 2010. All Rights Reserved

 

2


Under no circumstances shall the Escrow Agent be taken to have any knowledge of the contents of the Escrow Document.

 

4.4 The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Parties irrevocably authorize the Escrow Agent, without further notice to or consent from any of the Parties, to disclose information relating to any of the Parties or the Escrow Document to such agent or affiliate without further notice to or consent from any of the Parties. For the purpose of this Agreement, “affiliated entities” means any subsidiaries, branches or sub-branches of the Escrow Agent.

 

4.5 The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons.

 

4.6 In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party which, in its opinion, are insufficient or incomplete or conflict with any of the provisions of this Agreement or any applicable law, rule, regulation, order, ruling or directive, or any rule, policy, code, requirement or determination of any government, regulatory or self-regulatory body or market practice, the Escrow Agent shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held by it in custody until it shall be given a joint direction in writing by the Parties which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent after it has performed its obligations under Section 3.2, or by a final and non-appealable order or judgment of a court of competent jurisdiction.

 

4.7 The Parties agree to pursue any redress or recourse in connection with any dispute without making the Escrow Agent a party to the same.

 

4.8 The Escrow Agent may engage or be interested in any financial or other transaction and engage in any kind of business with either or both of the Parties or affiliate(s) thereof, and may act on the instructions of, or as depositary, trustee or agent for, any committee or body of holders of obligations of such Party or such affiliate(s), as freely as if it were not the Escrow Agent hereunder. The Escrow Agent may accept fees or other consideration in connection with such transactions or business or for providing services in connection with the Escrow Document or the Underlying Agreement without having to account to Party A or Party B.

 

4.9 The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction related to the transfer of Escrow Document, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 11 below and the Escrow Agent has been able to satisfy any applicable security procedures as may be required thereunder.

 

4.10 The rights and remedies of the Escrow Agent set forth in this Agreement shall be cumulative, and not exclusive, of any rights and remedies available to it at law or equity or otherwise.

 

5. Resignation

 

5.1 The Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving the Parties thirty (30) days advance notice of such resignation in writing and specifying a date when such resignation shall take effect (the “Effective Resignation Date”).

 

5.2 The Escrow Agent’s sole responsibility on or after the Effective Resignation Date shall be to hold the Escrow Document and to deliver the same to (i) a successor escrow agent, if any, designated by the Parties or (ii) any Party or the Parties, in each case as notified by the Parties in writing to the Escrow Agent in accordance with this Agreement, at which time of delivery this Agreement and the Escrow Agent’s obligations hereunder shall cease and terminate, subject to the provisions of Section 3.4.

 

This document contains information that is confidential and the property of J.P. Morgan Chase & Co. or its affiliates. It may not be copied, published or used, in whole or in part, for any purpose other than as expressly authorised by J.P. Morgan Chase & Co. or its affiliates.

© J.P. Morgan Chase & Co. 2010. All Rights Reserved

 

3


5.3 If, prior to the Effective Resignation Date, the Parties have failed to appoint a successor escrow agent, or instruct the Escrow Agent to deliver the Escrow Document to any Party in accordance with paragraph (ii) of Section 5.2 above, the Escrow Agent may, at any time on or after the Effective Resignation Date, appoint a successor escrow agent of its own choice. Any such appointment shall be binding upon all of the parties hereto and the Escrow Agent shall deliver the Escrow Document to the successor escrow agent so appointed (at the risk of the Parties), at which time of delivery this Agreement and the Escrow Agent’s obligations hereunder shall cease and terminate, subject to the provisions of Section 3.4.

 

6. Compensation and Reimbursement

 

6.1 Party A agrees to pay the Escrow Agent upon execution of this Agreement and from time to time thereafter compensation for the services to be rendered hereunder along with any fees or charges levied by any governmental authority which the Escrow Agent may impose, charge or pass-through, which unless otherwise agreed in writing shall be as described in Schedule 2 attached hereto and reimburse the Escrow Agent for all expenses arising out of or incurred in connection with or in order to comply with, the terms of this Agreement or any applicable legal, tax, accounting or regulatory requirements (including, without limitation, any fees of counsel, accountants or skilled persons pursuant to Section 4.5 and any costs and expenses incurred in making disclosure pursuant to Section 9.2) forthwith on receipt of an invoice detailing the same. All such fees and expenses may be charged, at the Escrow Agent’s discretion, to any account Party A may hold with the Escrow Agent. If Party A fails to make any payment due to the Escrow Agent hereunder on the due date for payment, interest on the unpaid amount shall accrue daily from the due date to the date of actual payment at a rate of LIBOR plus 2% per annum. For the purposes of this Section, “LIBOR” means the rate at which overnight deposits in the relevant currency and in an amount comparable to the relevant unpaid amount referred to in this Section 6.1 are offered by the Escrow Agent to prime banks in the London Inter bank market at or about 11 a.m. London time on each business day in London.

 

6.2 All compensation, reimbursement and other amounts payable by Party A under this Agreement shall be paid without setoff and without deduction for any withholding, value-added or other similar taxes, charges, fees or assessments. Party A shall indemnify the Escrow Agent on an after-tax basis against the full amount of any taxes (including, but not limited to stamp duty), fees, expenses, assessments or other charges paid by the Escrow Agent and any losses arising therefrom or with respect thereto, relating to or in connection with any amounts payable under this Agreement whether or not such taxes, fees, expenses, assessments or other charges were correctly or legally asserted. If Party A shall be required by any applicable law to make any deduction or withholding on account of taxes with respect to any amount payable under this Agreement, then it shall (i) pay such additional amounts so that the net amount received by the Escrow Agent of such payment is not less than the amount which the Escrow Agent would have received had no such deduction or withholding been made; and (ii) promptly deliver to the Escrow Agent all tax receipts evidencing payment of taxes so deducted or withheld.

 

6.3 On termination pursuant to Section 3.3 or resignation pursuant to Section 5.1, where Party A holds account(s) with the Escrow Agent, the Escrow Agent shall have the right to withhold an amount equal to any amount due and owing to the Escrow Agent, plus any costs and expenses that the Escrow Agent reasonably believes it may incur in connection with the termination of, or its resignation as Escrow Agent under, this Agreement.

 

6.4 The obligations contained in this Section 6 shall survive the termination of this Agreement and the resignation, replacement or removal of the Escrow Agent.

 

This document contains information that is confidential and the property of J.P. Morgan Chase & Co. or its affiliates. It may not be copied, published or used, in whole or in part, for any purpose other than as expressly authorised by J.P. Morgan Chase & Co. or its affiliates.

© J.P. Morgan Chase & Co. 2010. All Rights Reserved

 

4


7. Liability

 

7.1 None of the Escrow Agent, its affiliated entities, or any of their respective directors, officers and employees shall be liable to any Party for any loss, damage or expense suffered or incurred by any Party as a direct or indirect result of:

 

  (i) any act, omission or insolvency of any settlement system or person not affiliated with the Escrow Agent; or

 

  (ii) any forces beyond the control of the Escrow Agent, including, but not limited to, acts of God, fire, war, terrorism, floods, strikes, electrical outages or equipment or transmission failures.

 

7.2 Any liability of the Escrow Agent under this Agreement will be limited to the amount of fees paid to the Escrow Agent.

 

7.3 Subject to Sections 7.1 and 7.2, neither the Escrow Agent nor any of its directors, officers or employees shall be liable for any action taken, suffered or omitted to be taken by it (including, without limitation, loss, destruction or mis-delivery of the Escrow Document) except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Party. Nevertheless, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage or is taken to know of the identity or content of the Escrow Document and regardless of the form of action.

 

8. Indemnity

 

8.1 The Parties shall jointly and severally indemnify, defend and save harmless the Escrow Agent and its affiliates and their respective successors, assigns, directors, officers, managers, attorneys, accountants, experts, agents and employees (the “Indemnitees”) from and against any and all losses, damages, claims, liabilities, penalties, judgments, costs and expenses (including, without limitation, the fees and expenses of in house or outside counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively “Losses”) arising out of or in connection with (i) the Escrow Agent’s execution and performance of this Agreement, the enforcement of any rights or remedies under or in connection with this Agreement, or as may arise by reason of any act, omission or error of the Indemnitee(s), except in the case of any Indemnitee to the extent that such Losses are finally adjudicated by a court of competent jurisdiction to have been primarily caused by the gross negligence or willful misconduct of such Indemnitee, (ii) its following any instructions or other directions from any Party in accordance with this Agreement, except to the extent that its following any such instruction or direction is expressly forbidden by the terms hereof, or (iii) reliance by the Escrow Agent on any written notice, document, instruction or request jointly supplied by or on behalf of both Parties.

 

8.2 The indemnity obligations contained in this Section shall survive the termination of this Agreement and the resignations, replacement or removal of the Escrow Agent.

 

This document contains information that is confidential and the property of J.P. Morgan Chase & Co. or its affiliates. It may not be copied, published or used, in whole or in part, for any purpose other than as expressly authorised by J.P. Morgan Chase & Co. or its affiliates.

© J.P. Morgan Chase & Co. 2010. All Rights Reserved

 

5


9. Document Escrow and Disclosure of Information

 

9.1 Important Information about Procedures for engaging the services of Escrow Agent. To help in the fight against the funding of terrorism and money laundering activities, the Escrow Agent is required along with all financial institutions to obtain, verify, and record information that identifies each person to whom it provides services under this Agreement. When and at any time after any Party enters into this Agreement, the Escrow Agent will ask for and that Party shall provide all information that will allow the Escrow Agent and/or any of its affiliated entities to identify that Party (and any relevant underlying beneficiaries) and to comply with all applicable law, rules, regulations guidelines and codes of conduct (including those issued by the Hong Kong Monetary Authority).

 

9.2 Disclosure of Information. The Parties irrevocably authorize the Escrow Agent and its affiliated entities, without further notice to or consent from any of the Parties, and whether during the continuance of or after the termination of this Agreement, to make the required disclosure of information relating to any of the Parties, the Underlying Agreement and the Escrow Document to (i) any proposed successor escrow agent; (ii) any of their respective auditors, regulators or legal advisers, (iii) to any party that, in the Escrow Agent’s opinion, is necessary or desirable for the purpose of allowing the Escrow Agent to perform its duties and to exercise its powers and rights hereunder, and (iv) any relevant authorities (including, without limitation, the Securities and Futures Commission and the Hong Kong Monetary Authority) or as otherwise required by any applicable law, court or legal process, and to provide the relevant entities or authorities or court (as the case may be) with all such documents (or copies thereof) in the Escrow Agent’s possession as may be requested.

Without limiting any other right the Escrow Agent may have, each Party agrees that the Escrow Agent may disclose customer information and data in and outside Hong Kong to the persons listed in the Notice relating to Personal Data (Privacy) Ordinance or such other notice or document that the Bank may provide to the Parties from time to time (the “PDPO Notice”) for the purposes listed in the PDPO Notice. Insofar as information provided by the Parties includes the personal data of individuals connected to the Parties, each Party represents and warrants that it has obtained sufficient informed consent from the relevant individuals, as required by applicable law for the purpose of enabling the Escrow Agent to disclose such personal data in the circumstances described in the PDPO Notice and will provide the Escrow Agent with such consent as and when requested by the Escrow Agent. Each Party consents to the use, transfer, disclosure and storage of data relating to it in the manner described in the PDPO Notice.

The Parties shall have the right to file this Agreement with and/or disclose the terms and conditions hereof to the applicable governmental authorities or regulatory bodies (including without limitation the Securities Exchange Commission of the United States), and the stock exchange on which CBPO’s common stock is listed.

 

9.3 Tax Matters. Where either Party holds an account with the Escrow Agent, the Escrow Agent, at its discretion, is authorized to deduct or withhold any sum on account of any Tax required or which in its view is required to be so deducted or withheld or for which it is in its view liable or accountable by law or practice of any relevant revenue authority of any jurisdiction and, in each case, in accordance with the Escrow Agent’s usual and customary business practice. In this Agreement, “Tax” means all present and future taxes, levies, imposts or duties (including value added taxes and stamp duties) whatsoever and wheresoever imposed. The Escrow Agent is not responsible for the preparation or filing of any income, franchise or any other tax returns with respect to income earned or other transactions effected in relation to the Escrow Document or any account held by any Party. The Escrow Agent shall have no responsibility for making reclaims of Tax on behalf of any of the Parties.

 

This document contains information that is confidential and the property of J.P. Morgan Chase & Co. or its affiliates. It may not be copied, published or used, in whole or in part, for any purpose other than as expressly authorised by J.P. Morgan Chase & Co. or its affiliates.

© J.P. Morgan Chase & Co. 2010. All Rights Reserved

 

6


10. Notices and communications/instructions

 

10.1 All communications hereunder shall be in writing and except for communications from the Parties related to the transfer of Escrow Document (all of which shall be specifically governed by Section 11 below), shall be deemed to be duly given after it has been received and the receiving party has had a reasonable time to act upon such communication if it is sent or served:

 

  (i) by facsimile;

 

  (ii) by overnight courier; or

 

  (iii) by prepaid registered mail, return receipt requested,

to the appropriate notice address set forth below or at such other address as any party hereto may have furnished to the other parties in writing by registered mail, return receipt requested.

 

10.2 All communications/instructions made to Party A, Party B or the Escrow Agent pursuant to this Agreement will be made in accordance with the contact details as shown below:

 

If to Party A    c/o Warburg Pincus LLC
   450 Lexington Avenue
   New York, NY 10017
   Telephone: +1-212-878-0600
   Fax: +1-212-878-9200
   Attention: Timothy J. Curt
If to Party B    10B NANFU Building
   Lakeside Park, 66 Hubin Road
   Fuzhou, 350001
   People’s Republic of China
   Telephone: +86-13809555353 / +852-64893957
   Fax: +86-591-83772219
   Attention: Ms. Lin Ling Li
If to the Escrow Agent    c/o JPMorgan Chase Bank, N.A.
   54/F, One Island East
   18 Westlands Road, Hong Kong
   Attention: Escrow Department
   Fax No.: +852 5808 0639 / +852 2167 8603

 

10.3 Notwithstanding Sections 10.1 and 10.2:

 

  (i) in the case of communications delivered to the Escrow Agent, such communications shall be deemed to have been given on the date received by an officer of the Escrow Agent or any employee of the Escrow Agent who reports directly to any such officer at the above-referenced office; and

 

  (ii) in the event that the Escrow Agent, in its sole discretion, shall determine that an emergency exists, the Escrow Agent may use such other means of communication as the Escrow Agent deems appropriate.

 

10.4 For the purposes of this Agreement, “Business Day” shall mean any day other than a Saturday, Sunday or any other day on which the Escrow Agent located at the notice address set forth above is authorized or required by law or executive order to remain closed.

 

11. Security Procedures

 

11.1 Notwithstanding anything to the contrary as set forth in Section 10, any instructions related to the transfer of Escrow Document may be given to the Escrow Agent only by confirmed facsimile (notwithstanding Section 10) and shall be irrevocable, and no instruction related to the transfer of Escrow Document shall be deemed delivered and effective unless the Escrow Agent actually shall have received such instruction by facsimile at the number provided to the Parties by the Escrow Agent in accordance with Section 10 and as further evidenced by a confirmed transmittal to that number. Any transfer instruction must include one of the authorized signatures of each Party set out in Part A of Schedule 1 hereto. The Escrow Agent is authorized to act upon that instruction if the actual or purported signature, regardless of how or by whom affixed, resembles the specimens set out therein.

 

This document contains information that is confidential and the property of J.P. Morgan Chase & Co. or its affiliates. It may not be copied, published or used, in whole or in part, for any purpose other than as expressly authorised by J.P. Morgan Chase & Co. or its affiliates.

© J.P. Morgan Chase & Co. 2010. All Rights Reserved

 

7


11.2 In the event any communication/instruction is given, the Escrow Agent is authorized but shall be under no duty to seek confirmation of such communication/instruction by telephone call-back to any one or more of the persons designated in Part B of Schedule 1, and the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The Escrow Agent, at its discretion, may make recordings and retain such recordings of telephone conversation. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by the Escrow Agent, and shall be effective only after the Escrow Agent has had a reasonable opportunity to act on such changes.

 

12. Parties’ Representations, Warranties and Undertakings

Each of the Parties hereby represents, warrants and undertakes (as the case may be) to the Escrow Agent on a continuing basis that:

 

(a) it is duly incorporated, established or constituted (as the case may be) and validly existing under the laws of its country of incorporation, establishment or constitution (as the case may be);

 

(b) it is duly authorised and has taken all necessary action to allow it to enter into and perform this Agreement and the transactions contemplated under this Agreement;

 

(c) it has obtained all authorisations of any governmental authority or regulatory body required in relation to it in connection with this Agreement and such authorisations remain in full force and effect;

 

(d) the execution, delivery and performance of and the transactions to be effected under this Agreement will not violate (i) any law or regulation applicable to it, (ii) its constitutional documents (as applicable), or (iii) any agreement by which it is bound or by which any of its assets are affected;

 

(e) it will keep this Agreement confidential and, other than where disclosure is required by applicable law, court or legal process, or regulation, or will only disclose it (or any part of it) with the prior consent of the Escrow Agent;

 

(f) other than the Escrowed Shares, the Escrow Document does not include any documents or instruments which constitute or evidence title to shares, derivatives, instruments payable to bearer, negotiable instruments or any other securities or financial products (whether bearer securities, certificated securities or otherwise); and

 

(f) the Escrow Document does not include any documents or instruments which are unique documents and the Escrow Document is capable of being replaced without material cost or loss to the Parties in the event that it is lost, stolen or destroyed if Escrow Agent certifies such event.

 

13. Compliance with Court Orders

In the event that any escrow property shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court order affecting the property deposited under this Agreement, the Escrow Agent is hereby expressly authorized, in its sole discretion, to obey and comply with all writs, orders or decrees so entered or issued, which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction, and in the event that the Escrow Agent obeys or complies with any such writ, order or decree it shall not be liable to any of the parties hereto or to any other person, entity, firm or corporation, by reason of such compliance notwithstanding such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated.

 

This document contains information that is confidential and the property of J.P. Morgan Chase & Co. or its affiliates. It may not be copied, published or used, in whole or in part, for any purpose other than as expressly authorised by J.P. Morgan Chase & Co. or its affiliates.

© J.P. Morgan Chase & Co. 2010. All Rights Reserved

 

8


14. Miscellaneous

 

14.1 The provisions of this Agreement may be waived, altered, amended or supplemented, in whole or in part, only in writing signed by the Escrow Agent and the Parties.

 

14.2 Subject to Section 14.3, neither this Agreement nor any right or interest hereunder may be assigned in whole or in part by the Escrow Agent or any Party without the prior consent of all of the other parties hereto.

 

14.3 Any entity into which the Escrow Agent may be merged or converted or with which it may be consolidated, shall be party to this Agreement as Escrow Agent, and shall succeed to all rights and obligations of the Escrow Agent under this Agreement, without consent by, notice to or other further act by any of the Parties unless such consent, notice or act is required by any applicable law and may not be waived by the relevant Party or Parties. Each of the Parties agrees that if the Escrow Agent transfers its escrow business (or a business division of which the escrow business forms part) to another entity, it authorizes the Escrow Agent as its agent to sign an agreement with such entity in substantially the same form as this Agreement to procure that such agent be the successor Escrow Agent and succeeds to all rights and obligations of the Escrow Agent under this Agreement.

 

14.4 This Agreement shall be governed by and construed under the laws of the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”). Each Party irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the exclusive jurisdiction of the courts located in Hong Kong. To the extent that in any jurisdiction any Party may now or hereafter be entitled to claim, for itself or its assets, immunity from suit, execution, attachment (before or after judgment) or other legal process, each party hereto irrevocably agrees not to claim, and it hereby waives, such immunity.

 

14.5 At any time after the date of this Agreement each of the Parties shall, at the reasonable request of the Escrow Agent and at the cost and expense of the relevant Party or Parties, execute or procure the execution of such document(s) and/or do or procure the doing of such acts and things as the Escrow Agent may in its absolute discretion deem necessary or desirable for the purpose of carrying out any of its obligations under this Agreement.

 

14.6 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

14.7 If any provision of this Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction. Where, however, the conflicting provisions of any such applicable law may be waived, they are hereby irrevocably waived by the parties hereto to the fullest extent permitted by law, to the end that this Agreement shall be enforced as written.

 

14.8 Except as expressly provided in Sections 8 and 14.3 above, nothing in this Agreement, whether express or implied, shall be construed to give to any person or entity other than the Escrow Agent and the Parties any legal or equitable right, remedy, interest or claim under or in respect of this Agreement or the Escrow Document.

 

This document contains information that is confidential and the property of J.P. Morgan Chase & Co. or its affiliates. It may not be copied, published or used, in whole or in part, for any purpose other than as expressly authorised by J.P. Morgan Chase & Co. or its affiliates.

© J.P. Morgan Chase & Co. 2010. All Rights Reserved

 

9


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above.

duly authorized for and on behalf of WP X BIOLOGICS LLC

as Party A

 

Signature:   /s/ Timothy J. Curt
Printed Name:   Timothy J. Curt

LIN LING LI

as Party B

 

Signature:   /s/ Lin Ling Li
Printed Name:   Lin Ling Li LOGO

duly authorized for and on behalf of JPMORGAN CHASE BANK, N.A.

as Escrow Agent

 

Signature:   /s/ Ryan C. P. Lee
Printed Name:   Ryan C. P. Lee
EX-99.12 5 d539653dex9912.htm EX-99.12 EX-99.12

Exhibit 99.12

AGREEMENT

This AGREEMENT (this “Agreement”) is entered into as of May 14, 2013, by and among WP X Biologics LLC, a Delaware limited liability company (“WP X”), Ms. Lin Ling Li, a Hong Kong resident with Hong Kong ID number of R330968(0) (“Ms. Li”) and Mr. Ze Qin Lin, a Hong Kong resident with Hong Kong ID number of P774319(3) and husband of Ms. Li (“Mr. Lin”). WP X, Ms. Li and Mr. Lin are hereinafter referred to as the “Parties” and each a “Party”.

WHEREAS, the Parties entered into a share purchase agreement on April 29, 2013 (the “Share Purchase Agreement”);

WHEREAS, pursuant to the Share Purchase Agreement, WP X and Ms. Li entered into an escrow agreement (the “Escrow Agreement”) with JPMorgan Chase Bank, N.A., Hong Kong Branch (the “Escrow Agent”) on the date hereof; and

WHEREAS, the Parties wish to enter into this Agreement to provide for certain arrangements among the Parties with respect to the Escrow Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:

 

1. Definitions. Unless otherwise defined herein, capitalized terms shall have the meanings ascribed to them in the Escrow Agreement.

 

2. Delivery of Release Notice.

 

  (a) The Parties’ intention for the escrow arrangement contemplated under this Agreement and the Escrow Agreement is to secure the performance of obligations by Ms. Li as may be required under (i) final and non-appealable court order, or (ii) binding and irrevocable settlement (collectively, the “HK Lawsuit Resolution”) with respect to certain pending lawsuit in the High Court of the Hong Kong Special Administrative Region, Court of First Instance, brought by certain plaintiffs (the “Plaintiffs”) against Ms. Li and certain other co-defendants (Action No. 1424 of 2012). Other than the situations set forth in Section 2(b) below in which case the procedures set forth therein shall be followed, to the extent that the Escrowed Shares are no longer subject to any pending or threatened dispute or claim from any of the Plaintiffs, WP X and Ms. Li shall cooperate to deliver to the Escrow Agent the Release Notice which shall instruct the Escrow Agent to release the Escrow Document to Ms. Li.

 

  (b) Within ten (10) Business Days of the HK Lawsuit Resolution, the Parties shall deliver the Release Notice to the Escrow Agent to release the Escrow Document as follows:

 

  (i) in the event the HK Lawsuit Resolution requires Ms. Li to transfer the Escrowed Shares or any portion thereof (“Mandatory Transfer Shares”) to any third party(ies), the Release Notice shall require that the Escrow Agent shall release the Escrow Document to the Transfer Agent for the purpose of transferring the Mandatory Transfer Shares to the applicable third party(ies) and the remainder of the Escrowed Shares, if any, to Ms. Li; or

 

  (ii) in the event the HK Lawsuit Resolution does not require Ms. Li to transfer any Escrowed Shares to any third party(ies), the Release Notice shall require that the Escrow Agent shall release the Escrow Document to Ms. Li;


provided that in each case of (i) and (ii) above, WP X shall have the right to withhold its delivery of the Release Notice until Ms. Li and Mr. Lin have (A) fulfilled their payment obligations (if any) under the HK Lawsuit Resolution (including in the case of (i), delivering a stock power and a transfer instruction to the Transfer Agent instructing the Transfer Agent to transfer the Mandatory Transfer Shares to the applicable third party(ies) and the remainder of the Escrowed Shares, if any, to Ms. Li) or (B) obtained a release of future claims from the Plaintiffs to WP X’s reasonable satisfaction.

 

  (c) The Parties shall each take all actions required to facilitate such transfers as referred to in Section 2(b)(i), including without limitation, by causing CBPO and the Transfer Agent to effect the transfer of the Mandatory Transfer Shares to the applicable third party(ies) and the remainder of the Escrowed Shares, if any, to Ms. Li.

 

3. Joint Obligation. Mr. Lin hereby agrees and acknowledges that he and Ms. Li collectively act as one party under this Agreement and shall be jointly and severally liable with Ms. Li for any of their obligations hereunder or under the Escrow Agreement.

 

4. General Provisions

 

  (a) The provisions of this Agreement may be waived, altered, amended or supplemented, in whole or in part, only in writing signed by each of the Parties.

 

  (b) This Agreement shall terminate automatically upon the termination of the Escrow Agreement (other than any termination of the Escrow Agreement pursuant to the resignation of the Escrow Agent thereunder). Upon receipt of the Escrow Agent’s notice of resignation, WP X and Ms. Li shall use their respective commercially reasonable efforts to cooperate with each other to, as promptly as practicable, enter with a third-party escrow bank other than the Escrow Agent (the “Replacement Escrow Agent”) into an escrow agreement (the “Replacement Escrow Agreement”) to implement the escrow arrangement contemplated hereunder and under the Share Purchase Agreement. Upon and after the execution of the Replacement Escrow Agreement, all references to “Escrow Agreement” and “Escrow Agent” herein shall be deemed to be references to the Replacement Escrow Agreement and the Replacement Escrow Agent, respectively.

 

  (c) This Agreement shall be governed by and construed in accordance with the laws of New York State, without regard to the principle of conflict laws thereunder. All disputes between the Parties arising out of or relating to this Agreement shall be finally settled at the Hong Kong International Arbitration Centre (the “Centre”) in accordance with the Rules of Arbitration of the Center by three arbitrators appointed in accordance with said Arbitration Rules. The place of arbitration shall be in Hong Kong. The arbitration shall be conducted in English. The resolution of any dispute by arbitration pursuant to this Section 4(c) shall be non-appealable, final, binding and conclusive on the Parties to such dispute and may be enforced and entered as a judgment in any court of law with jurisdiction thereof. Notwithstanding the foregoing, any Party shall be free to seek interim or permanent equitable or injunctive relief, or both, from any court having jurisdiction to grant the same.

 

  (d) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

  (e) If any provision of this Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction. Where, however, the conflicting provisions of any such applicable law may be waived, they are hereby irrevocably waived by the parties hereto to the fullest extent permitted by law, to the end that this Agreement shall be enforced as written.

 

2


IN WITNESS WHEREOF, the Parties have executed this Agreement as of the first date above written.

 

WP X BIOLOGICS LLC
By:  

/s/ Timothy J. Curt

Name:   Timothy J. Curt
Title:   Vice President and Treasurer


IN WITNESS WHEREOF, the Parties have executed this Agreement as of the first date above written.

 

LI, LIN LING

/s/ LI, LIN LING

LIN, ZE QIN

/s/ LIN, ZE QIN

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